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Repealing NDAA

I am of two minds about the Due Process Guarantee Act of 2011, a bill drafted in response to the detention provisions of the recently-enacted National Defense Authorization Act (NDAA).  While I support efforts to restrict the use of detention without charge, I do not believe that only certain groups—namely, citizens and lawful permanent residents—should be singled out for protection.

The draft law, introduced in the Senate on December 15 and in the House the following day, says that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the US, unless Congress explicitly provides for such detention.  In other words, it would establish a clear statement rule that would offer citizens and resident non-citizens in the US default protection against detention without charge.

Such a rule, had it existed in 2002, would have barred the Bush administration from holding US citizen Jose Padilla for three-and-a-half years without charge, an unnecessary and abusive measure.  But it would do nothing to solve the country’s most urgent and glaring detention problem: the indefinite detention of non-resident aliens.

To date, aside from two instances (Padilla and Louisiana-born Yaser Hamdi), it is non-citizens, rather than citizens, who have borne the brunt of the US government’s post-9/11 propensity to hold suspected terrorists for years without charge or trial. Hundreds of non-citizens have been detained at Guantanamo over the past decade, of whom 171 remain, all but five without formal charge.

Does He Not Bleed?

Most Americans would, I think, be appalled if protection against indefinite detention were allocated along explicit racial or ethnic lines. A law saying that African-Americans could be held without charge, but white people could not, would be condemned as unconstitutional by the man on the street. Yet such distinctions, when they trace the bounds of citizenship, are somehow viewed as natural.

“Prick a Yemeni or Somali; does he not bleed?” asked ACLU deputy legal director Jameel Jaffer recently, trying to redirect public concern over the NDAA’s controversial detention provisions toward detainees at Guantanamo. Jaffer, a Canadian, may understand better than most that non-citizens are no less human than Americans. Many US citizens, it seems, assume that standards of fairness can and should be malleable, varying according to one’s passport.

What would be a raw injustice, if endured by an American, is apparently less of an outrage if a foreigner is the injured party.

Citizenship Is “Irrelevant”

This underlying sense that distinctions based on citizenship are natural and legitimate is not universally held.  The UK’s highest court, faced with a British indefinite-detention law in 2004, struck the law down precisely because it discriminated on the grounds of citizenship. Passed in the wake of the September 11 attacks, the law applied only to foreign nationals suspected of terrorism, not to UK citizens.

The court’s reasoning in that case is instructive.  “If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty,” said one of the Law Lords hearing the case, “it is not shown why similar measures could not adequately address the threat presented by foreign nationals.”

“The nationality of the suspects,” another of the Law Lords explained, is “irrelevant” to the threat that they pose.  And if the threat is the same, the suspects should be treated equally.

The equal treatment standard has strong normative appeal.  Given their lack of political power, and their inability to attract the concern of the US public, non-citizens have few obvious means of defending their rights. For them, paradoxically, a terrible but even-handed law—one that potentially harms citizens and non-citizens alike—may be better than a law of narrower scope. The broader the law, the broader the potential constituency for its repeal.

The reform that makes real sense is not a limited revision of the NDAA to protect Americans, but a principled initiative that bans detention without charge.  A bill introduced by Representative Ron Paul, which would repeal one of the NDAA’s key detention provisions, would be a step in that direction, but, with only three cosponsors, the bill has little chance of passing.  (Ron Paul’s legislative record does not inspire confidence.)

Prospects for meaningful change are slim. In the meantime, unbeknownst to the US public, the relatives of detainees held at Guantanamo hold demonstrations outside of the US Embassy in Kuwait.  There is abundant outrage and concern over the indefinite detention of people at Guantanamo, it just isn’t shared here.

Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law. 

This column previously appeared on Justia’s Verdict.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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